Obtaining a patent: what makes an invention patentable?

Securing a patent for an invention can be a complex process, but success fundamentally depends on being able to demonstrate that your innovation meets three criteria: novelty, inventiveness and industrial applicability.

To maximise your chances of being granted a patent, innovators need to know precisely what these requirements entail and how to appropriately demonstrate them.

What are the three key criteria for securing a patent?  #

To secure a patent, you must be able to demonstrate that your invention is novel, inventive and industrially applicable. This may sound straightforward, but legal definitions are strict. Failing to meet one of these criteria can lead to a rejected application.

1. Novelty #

UK patent law denotes that novelty refers to the originality of your invention. In other words, it must be new.

For something to be considered novel, it must not exist anywhere in the public domain in any form before the date of your application. This is referred to as ‘no enabling public disclosure’.

Enabling disclosures includes a number of things. It can mean existing patents, applications and commercial products in other regions – patent law also varies by region/country. It also refers to any public information available online.

Another consideration which can negatively impact the ‘novelty status’ of your innovation is if you disclose anything about it prior to application.

Also known as ‘self-disclosure’, it is possible for you to destroy the patentability of your own idea or creation by publicly sharing information about it.

The UK operates under an ‘absolute novelty’ rule. This means that even a casual social media post made before the filing date can legally bar you from getting patent protection.

2. Inventiveness #

Inventiveness in relation to patentability means that your innovation must provide a solution to a problem that is not immediately obvious to someone ‘skilled in the art’.

This is not the same as novelty. It means that someone skilled in the area of your sought patent could not reasonably arrive at your invention or solution based on any other prior disclosure without an element of inventiveness, or taking an inventive step.

An example might be Dyson’s bagless vacuum technology. It uses cyclone technology to separate dust which is not an obvious modification; it required an inventive step to solve the issue of lack of suction.

Put simply, the requirement means your innovation cannot be an obvious or routine modification to a preexisting product solution or idea.

3. Industrial applicability  #

If your invention is simply presented as theoretical, then it will not be suitable for a patent. It must have real-world application.

You need to be able to define the industrial use of your invention. This means it must be suitable for use in specific domains such as manufacturing or commerce.

One example might be a new biodegradable packaging material to replace single-use plastics. Given it has a clear commercial use and can be manufactured at scale, the invention has real-world applicability.

What types of inventions cannot be patented?  #

Some specific products and ideas are unsuitable for protection. To safeguard public welfare and ethical standards, patents are generally denied for medical procedures, artistic works, illegal inventions and theoretical or natural discoveries.

Medical treatment methods #

It is generally not possible to patent discoveries relating to the treatment or diagnosis of health conditions. It is considered that this could impede healthcare and fair access to treatment.

This limitation also applies to knowledge such as methods of surgeries. Pharmaceuticals themselves, however, are eligible and can be patented.

So whilst a surgeon could not patent a new way to stitch a wound, a pharma company could patent the specific chemical compound used in a new antibiotic cream that would be applied to the wound.

Medical devices, such as wearable health monitors and specialised surgical tools, are also protectable. They are classified as physical, technical inventions, rather than abstract methods.

Scientific and mathematical theories and formulas #

Because they are not considered ‘new’, scientific discoveries and mathematical formulae or theories are not patentable. However, if you devise a technological application with a new, previously undocumented effect, then it may become patentable.

For instance, the mathematical formula behind a new type of encryption could not be patented by itself, but if it was adapted into a physical hardware security module in a novel way, it could be.

Discoveries relating to laws of nature #

If you uncover a naturally-occurring process or phenomena, it cannot be patented. For it to be considered, you need to be able to prove a novel application of the process to a previously undocumented end.

One example may be if you found a new use for a substance found in nature. Isolating that effect and a related process could be patentable.

If you happened to discover a wild plant that has medicinal properties, it can’t be patented. However, you could patent the industrial process used to extract and stabilise the plant’s active ingredient for use in a drug or other product.

Literary and aesthetic creations  #

Works of art, literary creations, design works and music are not patentable. These types of inventions are covered instead by design right or copyright law.

Immoral or illegal inventions #

Unsurprisingly, goods are not patentable if they are deemed immoral, antisocial or contrary to public policy.

In practice, this limitation is interpreted narrowly, with only technologies deemed ‘abhorrent to the public’, such as landmines and methods of human cloning, deemed unpatentable.

If a product is illegal, it may still be patented, with UK patents granted for both firearms and cannabis related products, for example.

Securing protection for your IP: benefits of working with a global partner #

A specialist patent attorney will be able to advise and guide you on all aspects of your filing strategy. Given patent requirements can differ, this has particular value if you’re planning to build a global IP portfolio.

The UK Intellectual Property Office and European Patent Office share very similar, almost identical, patentability criteria. But in the US, for example, you will find there are some differences, which mean an unpatentable innovation in the UK and Europe might be eligible there.

There are also other differences, for example with grace periods relating to disclosure. In the UK, prior disclosure can ultimately invalidate your application, but in the US there is a one-year grace period leading up to the date the patent request was filed. In this time, any inventor disclosure will not be considered detrimental to the success of the request.

China also operates first-to-file rather than first-to-invent, and while there is a grace period like in the US, it is narrower – typically six months and limited to specific scenarios like academic conferences.

Whether you’re securing protection in your home market or scaling globally, enlisting the support of a professional patent attorney will ensure your filing strategy is always built on robust foundations.

Discover your true IP worth with Murgitroyd #

Our global team of IP attorneys provide tailored, expert support for every stage of the patent process.

We can help you in identifying and evaluating the novelty of your innovation, conducting the relevant searches and assessing the landscape to maximise the potential of your inventions.

Our team advises clients across many sectors, specialisms and domains. We provide the legal insight, technical expertise and commercial focus needed to guide your strategy and secure your ideas in jurisdictions across the globe.

Turn your innovations into valuable, legally-enforceable rights: talk to our patent experts today.